Full Judgment Text
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12 December 2024
+ CRL.REV.P. 1334/2024 & CRL.M.A. 36179/2024
MR. KUNWER FAHMED ALAM ARIYANA .....Petitioner
Through: Mr. Nishant Rai Goel and Ms. Amrita
Jha, Advocates.
versus
MS. MAMTESH ALAM @MAMTESH .....Respondent
Through: Ms. Shubhi Gupta, APP for the State
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
Does apostasy disentitle a woman from receiving maintenance
under section 125 of the Code of Criminal Procedure Code 1973
(‘Cr.P.C.’)? This question has arisen in the context of a challenge to
an order granting maintenance to a wife, who, having married a
Muslim man by converting to Islam, has subsequently re-converted to
Hinduism.
2. By way of the present revision petition filed under section 438 of the
Bharatiya Nagarik Suraksha Sanhita 2023 (‘BNSS’), the petitioner
(husband) impugns order dated 03.10.2024 passed by the learned
Judge, Family Court, Karkardooma District Courts, Delhi (‘Family
Court’), whereby the learned Family Court has been pleased to award
maintenance in the sum of Rs.15,000/- per month to the respondent
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(wife) and Rs.25,000/- per month to the petitioner’s minor son, who is
about 6 years old, in proceedings under section 125 Cr.P.C.
3. At the stage of preliminary hearing of the matter, Mr. Nishant Rai
Goel and Ms. Amrita Jha, learned counsel appearing for the petitioner
premised their challenge to the impugned order on the legal issue :
namely, that apostasy of Islam by the wife resulted in the nikah
between the parties being ‘annulled’; and that therefore, the
respondent neither is nor ever was the petitioner’s wife and is not
entitled to any maintenance under section 125 Cr.P.C.
4. In this backdrop, learned APP, who was present in court on the first
date of hearing, offered to assist this court on the legal issue raised by
the petitioner.
5. Further to that, the court has heard Mr. Goel and Ms. Jha; as well as
Ms. Shubhi Gupta, learned APP assisting this court, at length.
ETITIONER S UBMISSIONS
P ’ S
6. Mr. Goel has first drawn attention to the provision of section 125
Cr.P.C., which reads as follows :
“ 125. Order for maintenance of wives, children and
parents.
(1) If any person having sufficient means neglects or
refuses to maintain–
(a) his wife, unable to maintain herself, or
(b)his legitimate or illegitimate minor child,
whether married ornot, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself
or herself,
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a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly allowance
for the maintenance of his wife or such child, father or mother, at
such monthly rate, as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such allowance, until
she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of
sufficient means:
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance for the
maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which
the Magistrate considers reasonable, and to pay the same to such
person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance
for the interim maintenance and expenses for proceeding under the
second proviso shall, as far as possible, be disposed of within sixty
days from the date of the service of notice of the application to such
person.
Explanation. – For the purposes of this Chapter, –
(a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of 1875) is
deemed not to have attained his majority,
(b) “wife” includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has
not remarried .
(2) Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable from the
date of the order, or, if so ordered, from the date of the application
for maintenance or interim maintenance and expenses of
proceeding, as the case may be.
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(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every breach of
the order, issue a warrant for levying the amount due in the manner
provided for levying fines, and may sentence such person, for the
whole or any part of each month's allowance for the maintenance or
the interim maintenance and expenses of proceeding, as the case
may be, remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the recovery of
any amount due under this section unless application be made to the
Court to levy such amount within a period of one year from the date
on which it became due:
Provided further that if such person offers to maintain his
wife on condition of her living with him, and she refuses to live with
him, such Magistrate may consider any grounds of refusal stated by
her, and may make an order under this section notwithstanding such
offer, if he is satisfied that there is just ground for so doing.
Explanation. – If a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered to be just
ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be, from her husband under this section
if she is living in adultery, or if, without any sufficient reason, she
refuses to live with her husband, or if they are living separately by
mutual consent.
(5) On proof that any wife in whose favour an order has
been made under this section is living in adultery, or that without
sufficient reason she refuses to live with her husband, or that they
are living separately by mutual consent, the Magistrate shall cancel
the order. ”
(emphasis supplied)
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7. Dilating on the argument that apostasy leads to ‘annulment’ of the
marriage, Mr. Goel has argued that the respondent, who was then
Hindu by faith, converted to Islam and contracted nikah with the
petitioner on 04.11.2009. Learned counsel submits however, that it is
the admitted position, that subsequently on 25.10.2020, that is after
about 11 years of being married, the respondent re-converted to
Hinduism and accordingly apostatized from Islam. It is argued, that
by reason of the respondent having apostatized, the marriage between
the parties stood annulled , namely it was rendered null-and-void from
the very beginning; and therefore, it cannot be said that the
respondent was ever the petitioner’s wife. It is argued that as a result,
the respondent does not fall within the meaning of “wife” under
Explanation (b) to section 125(1) of the Cr.P.C., which may be
noticed :
“ (b) “wife” includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not re-married. ”
8. It is accordingly the argument, that though a divorced woman
continues to be ‘wife’ for purposes of section 125 Cr.P.C. so long as
she does not remarry, if a woman was never married to a man,
obviously, she would not fall within the definition of ‘wife’ under
section 125 Cr.P.C.
9. In support of this submission, Mr. Goel has also relied upon the
Proviso to section 4 of the Dissolution of Muslim Marriages Act,
1939 which reads as follows :
“ 4. Effect of conversion to another faith. — The
renunciation of Islam by a married Muslim woman or
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her conversion to a faith other than Islam shall not by itself
operate to dissolve her marriage :
Provided that after such renunciation, or conversion, the
woman shall be entitled to obtain a decree for the dissolution of her
marriage on any of the grounds mentioned in Section 2:
Provided further that the provisions of this section shall
not apply to a woman converted to Islam from some
other faith who re-embraces her former faith . ”
(emphasis supplied)
The submission being, that since the respondent re-embraced
Hinduism, in view of the second proviso to section 4 extracted above,
the marriage between the parties stood automatically dissolved; and
the petitioner is not obligated to pay any maintenance to the
respondent even under Muslim Personal Law.
10. To support the above submission, learned counsel has also placed
reliance on a fatwa issued by Darul Ifta (Fatwa Department), Madarsa
Hussain Bakhsh, Moti Mahal, Jama Masjid, Delhi by which Islamic
Scholars have opined that according to Sharia Law the husband is not
obligated to pay any maintenance to his wife since she has become an
apostate.
11. Mr. Goel further draws attention to paras 12 and 13 of the decision of
a Division Bench of this court in Munavvar-ul-Islam vs. Rishu Arora
1
&Rukhsar , to support his argument that apostacy from Islam leads to
‘annulment’ of the nikah . The relevant paragraphs of the judgment
read as follows :
“ 12. As early as 1870, Mr. Charles Hamilton, in his
translation of Hedaya observes :
1
2014 SCC OnLine Del 1578
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“ In a case of apostacy separation takes place without
divorce. If either husband or wife apostatize from the faith, a
separation takes place without divorce, according to
Haneefa and Aboo Yoosaf Mohammed alleges that if the
apostacy be on the part of the husband, the separation is a
divorce … Haneefa makes a distinction between refusal of
the faith and apostacy from it; and his reason for this
distinction is that apostacy annuls marriage, because the
blood of an apostate no longer remains under the
protection of the law … now divorce is used for the purpose
of dissolving a marriage which actually exists; and hence
apostacy cannot possibly be considered as divorce : contrary
to the case of refusal of the faith, because it is on account of
the ends of matrimony being thereby defeated that
separation is enjoined, in that instance, as has been already
said; and for this reason it is that the separation is there
suspended upon a decree of the magistrate, whereas in
apostacy it takes place without any such decree …” [Charles
Hamilton, Hedaya or Guide: A Commentary on the
Mussulman Laws, (Second Edition, edited by Stanish Grove
Grady, Volume 1, William H. Allen & Co., London, 1870), at
p. 66]
2
(Emphasis supplied)
“ 13. Shortly thereafter, in 1875, Mr. Neil Baillie observes in
his Digest as under:
“ Apostasy from Islam by one of a married pair is a
cancellation of their marriage, which takes effect
immediately without requiring the decree of a judge ; and
without being a repudiation, whether the occurrence is
before or after consummation … If they apostatize together,
and then together re-embrace the faith, the marriage
remains valid on a favourable construction; but if only one
of them returns to the faith a separation takes place between
them. If it is not known which of them was first in
2
Phrase “Emphasis supplied” is in the original quote.
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apostatizing, the result is the same as if they apostatized
together…”[Neil BE Baillie, A Digest of Moohummudan
Law, (Second Edition, Part First, Smith, Elder, & Co,
London, 1875) pp. 182-183]
3
(Emphasis supplied)
“ If one of two spouses should apostatize from the
Mussulman faith before connubial intercourse has taken
place, their marriage is cancelled on the instant, and the
wife has no right to dower if the apostasy be on her side; but
if it is on the side of the husband she is entitled to half the
dower. If the apostasy does not take place till after
connubial intercourse, the cancellation of the marriage is
suspended till the expiration of the iddut, whether the
husband or the wife be the apostate, and no part of the
dower abates, because the right to it has been fully
established by consummation . There is an exception,
however, if the husband were born in the faith, for in that
case, the marriage is cancelled immediately, though it
should have been followed by connubial intercourse,
because a return to the faith is not allowed .” [Op. cit., Part
Second, pp. 29-30.]
(emphasis supplied)
12. Learned counsel accordingly submits, that since apostasy leads to
annulment of the marriage, the petitioner has no liability to pay any
maintenance to the respondent under section 125 Cr.P.C., since the
respondent was never his wife, and the impugned order deserves to be
set-aside.
13. Insofar as the quantum of maintenance awarded is concerned, counsel
argues that the learned Family Court has failed to appreciate that
3
Phrase “Emphasis supplied” is in the original quote.
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while at one stage the petitioner, who is a structural engineer by
profession, was employed and was earning well, he has since lost his
job; and is therefore no longer in a position to pay the maintenance
awarded in favour of the respondent as well as his son. In support of
this submission, counsel draws attention to the opening words of
section 125 Cr.P.C., which say : “ If any person having sufficient
means neglects or refuses to maintain … ” and it is argued, that at the
present time the petitioner does not have sufficient means to pay
maintenance to his wife or child.
S UBMISSIONS BY THE S TATE
14. Arguing against the contentions raised on behalf of the petitioner, Ms.
Gupta, learned APP has drawn attention of this court to the following
extracts of Munavvar-ul-Islam (supra) :
“ 18. While doubtless the jurists are divided on whether the
factum of apostasy dissolves the marriage or renders it invalid or
void or null , there is certainly unanimity amongst both the jurists as
well as the judgements of the Courts, that apostasy of either party to
a marriage contracted under Muslim personal law shall put an end
to the marriage. Thus the question arises as to whether the Act,
more specifically, section 4 thereof, alters this state of law .
*
“ 51. It must be noted that this contention was not raised
before the Trial Court, nor is there any specific ground in the
appeal to support this contention. In any case, on its own merit, the
contention deserves to be rejected as proceeding from an incorrect
understanding of Muslim personal law, and of law in general. A
woman married under Muslim personal law is not empowered, nor
is she conferred with a right to divorce her husband by apostatizing.
All that the law states is that were a woman married under Muslim
personal law to apostatize, the marriage stands dissolved. In such
circumstances, the woman is entitled to seek a decree of
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declaration that the marriage stands dissolved from the date of her
apostatizing. Secondly, while it is doubtless that the husband's right
in such a case to divorce his wife by pronouncing talaq is affected,
the same is not due to operation of law or of a judicial
pronouncement; the right stands affected by the simple fact that the
marriage has already dissolved. Inasmuch as it is not the contention
of the appellant that any of his vested right is taken away by the Act
retrospectively, the contention is not one to be taken up in support of
this appeal. ”
(emphasis supplied)
15. Ms. Gupta argues, that though the Division Bench in Munavvar-ul-
Islam (supra) quotes the authors Charles Hamilton and Neil Baillie in
their judgment, what the Division Bench holds as a matter of law is
that where a woman married under the Muslim Personal Law
apostasies, the marriage stands ‘dissolved’. Counsel submits
therefore, that the ratio of the decision is that apostasy leads to
automatic dissolution of marriage but not to annulment of the
marriage; which would mean that at the very least, the status of the
respondent would be that of a divorced-wife.
16. Furthermore, Ms. Gupta argues, that since admittedly the respondent-
wife has not re-married, it is trite law that all married or divorced
women, irrespective of their religion are entitled to maintenance
under section 125 Cr.P.C.
A NALYSIS & C ONCLUSIONS
17. On a plain reading of section 125 Cr.P.C, it is seen that the section
carries no reference to, or connection with, any religious
denomination. Moreover, the provision is found in the Cr.P.C., which
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in any case is a code of procedure which is agnostic to any personal
law.
18. Besides, even section 4 of the Dissolution of Muslim Marriages Act,
1939 cited by the petitioner, refers to dissolution of a Muslim
marriage upon conversion of a woman to another faith. It is in that
respect, that the second proviso to section 4 says that, if a woman
converts to Islam and gets married to a Muslim man and then re-
embraces her former faith, the protection against automatic
dissolution of marriage contained in Section 4 would not be available
to such woman; and, that in case of such woman, renunciation of
Islam or conversion to some other faith would “by itself operate to
dissolve her marriage”. Yet again, that would be a case of dissolution
of marriage, implying thereby that the existence of marriage in the
first place stands acknowledged. Ergo, it would not be a case of a
marriage being treated as annulled or void ab-initio .
19. A holistic reading of the Division Bench verdict in Munavvar-ul-
Islam (supra) shows that the court only holds, that upon a woman
married under Muslim law apostatizing, the marriage stands dissolved
and a decree to that effect can be obtained by such woman declaring
that the marriage stands dissolved. Again therefore, the situation
contemplated is of dissolution of a marriage and not its annulment .
For purposes of section 125 Cr.P.C therefore, such a woman would be
a wife who has been divorced, or who has obtained divorce, and not a
woman who was never married.
20. Most importantly, this court finds that in a very recent decision of the
Supreme Court in Mohd. Abdul Samad vs. State of Telangana and
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4
Another , the Supreme Court has categorically reiterated the secular
5
character of section 125 Cr.P.C. in the following words :
“ 12. Numerous decisions of this Court went on to state that
Section 125 of CrPC 1973 is a measure for social justice to protect
the weaker sections, irrespective of applicable personal laws of the
parties , as contemplated through Articles 15(3) and 38 of the
Constitution of India. This Court similarly held in the decision of
Shri Bhagwan Dutt v. Smt. Kamla Devi (1975) 2 SCC 386 that the
nature of power and jurisdiction vested with a Magistrate by virtue
of the instate provision is not punitive in nature and neither it is
remedial, but it is a preventive measure. It was also observed that
while any such right may or may not exist as a consequence of any
of the personal laws applicable to the concerned parties, they shall
continue to exist distinctively, and independently as against the
secular provision .
*
“ 14. In Fuzlunbi v. K. Khader Vali (1980) 4 SCC 125 (SC),
it was categorically observed by this Court that enactment of the
said provision charges the court with a deliberate secular design to
enforce maintenance or its equivalent against the humane
obligation, which is derived from the State's responsibility for social
welfare. The same is not confined to members of one religion or
region, but the whole community of womanhood .
“ 15. At this stage, it is pertinent to consider the concerned
personal laws which allegedly stand in conflict with the secular
provision of Section 125 of CrPC 1973. The 1986 Act was brought
about by the legislature as an attempt to clarify the position laid
down. A 5-Judge Bench in Mohd. Ahmed Khan v. Shah Bano Begum
(1985) 2 SCC 556 extensively dealt with the issue of maintenance
apropos the obligation of a Muslim husband to his divorced wife
who is unable to maintain herself, either after having been given
divorce or having had sought one. The Bench unanimously went
on to hold that the obligation of such a husband would not be
4
2024 SCC OnLine SC 1686
5
per Augustine George Masih J.
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affected by the existence of any personal law in the said regard
and the independent remedy for seeking maintenance under
Section 125 of CrPC 1973 is always available . It also went on to
observe that, even assuming, there is any conflict between the
secular and personal law provisions in regard to maintenance being
sought by a divorced wife, the Explanation to second Proviso to
Section 125(3) of CrPC 1973 unmistakably shows the overriding
nature of the former. While elaborating on the said observation, it
explained that the wife has been conferred with the right to refuse to
live with her husband who has contracted another marriage, let
alone three or four other marriages.
*
“ 18. The position that the rights under Section 125 of CrPC
1973 would also be accessible to a divorced Muslim woman was
substantially reiterated in Shabana Bano v. Imran Khan (2010) 1
SCC 666, whereby this Court, through a cumulative reading of the
decision in Danial Latifi (supra), reached the said conclusion. ”
(emphasis supplied)
21. In the concurrent decision of the other Hon’ble Judge in Mohd. Abdul
6
Samad (supra) also it has been observed as follows :
“ 36. The 1986 Act thus continues to operate within the same
juridical compass as the judgment in Shah Bano and the reasons for
upholding the constitutionality of Danial Latifi cannot be lost sight
of. The crux of the reasoning in Danial Latifi is that the 1986 Act is
a social welfare legislation that seeks to provide an additional right
and thereby, an additional remedy. DanialLatifi implicitly
recognises the cardinal principle of non-retrogression that prohibits
the State from taking measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under the
Constitution or otherwise vide Navtej Singh Johar v. Union of
India, (2018) 10 SCC 1, Pr. 202. I therefore reiterate that the 1986
Act does not take away rights that divorced Muslim women have
either under personal law or under Section 125 of the CrPC. I do
6
per B.V. Nagarathna J.
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not find any inconsistency between the provisions of the 1986 Act
and Section 125 of the CrPC. Thus, a Muslim divorced wife is
entitled to maintenance under Section 125 CrPC irrespective of
her personal law, as reiterated in Shabana Bano v. Imran Khan,
(2009) 14 Scale 331 . Such a construction would not defeat the
legislative intent and diminish the scope of additional protection
afforded to Muslim women under the 1986 Act .”
*
“ 40. Therefore, the position of law with regard to
harmonious interpretation of Sections 125-128 of the CrPC and the
1986 Act can be summarised as under:
i. There cannot be a disparity amongst divorced
Muslim women on the basis of the law under which they
were married or divorced in the matter of their maintenance
post-divorce. The definition of ” divorced woman” under the
1986 Act would include only a Muslim woman who has
married according to Muslim law but also divorced under
that law. But if a Muslim woman has been married under the
Special Marriage Act, such a Muslim woman who is
divorced, cannot get the benefit of the 1986 Act. Such a
Muslim woman, who is divorced, would have to proceed
either under the provisions of the Special Marriage Act,
1954 and/or under Section 125 of the CrPC. Therefore, the
protective provision of Section 125 ought to remain
available to every divorced Muslim woman to avoid the
absurd outcome of a section of Muslim women being left
remediless under the 1986 Act . As a corollary, it is held that
such women who are covered under the 1986 Act are also
entitled to the benefit of Section 125 of the CrPC. Further,
there can be no bar under the Explanation (b) to Section 125
of the CrPC so as to exclude any Muslim woman who has
been divorced or has obtained a divorce from her husband
and has not remarried. This is irrespective of the 1986 Act
being applicable to only such divorced Muslim woman who
qualifies within the definition of divorced woman under
Section 2(a) of the 1986 Act.
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ii. Section 3 of the 1986 Act provides for a
reasonable and fair provision of maintenance to a divorced
Muslim woman only on certain terms and conditions within
the iddat period by her husband. Once the iddat period
expires, the personal law obligation to maintain the divorced
Muslim woman by the husband ceases. Per contra, under
Section 125 of the CrPC, any divorced wife who has not
remarried is entitled to maintenance by her ex-husband
who has sufficient means but has neglected or refused to
maintain her .
iii. Further, under Section 3(1)(b) of the 1986 Act,
where a divorced woman maintains the children born to her
before or after her divorce, a reasonable and fair provision
and maintenance has to be made and paid by her former
husband only for a period of two years from the respective
dates of birth of such children and not beyond the said
period. However, under Section 125 of the CrPC, there is
no such restriction of maintenance to be provided only for
a period of two years from the respective dates of birth of
such children in the case of a divorced wife. The obligation
is until the children attain the age of majority and in terms
of the said Section .
iv. ……
v. I, therefore, hold that Section 125 of the CrPC
cannot be excluded from its application to a divorced
Muslim woman irrespective of the law under which she is
divorced . There cannot be disparity in receiving
maintenance on the basis of the law under which a woman is
married or divorced. The same cannot be a basis for
discriminating a divorced woman entitled to maintenance as
per the conditions stipulated under Section 125 of the CrPC
or any personal or other law such as the 1986 Act. I also
note that although the provisions of the 1986 Act have been
upheld by a Constitution Bench of this Court in the case of
Danial Latifi, the same would not in any way restrict the
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application of Section 125 of the CrPC to a divorced Muslim
woman .”
*
“ x. Hence, what emerges is that the 1986 Act is not a
substitute for Section 125 of the CrPC and nor has it
supplanted it and both can operate simultaneously at the
option of a divorced Muslim woman as they operate in
different fields. As I find no conflict between the provisions
of the 1986 Act, which is a piece of legislation in the nature
of quasi-personal law insofar as the divorced Muslim wife is
concerned and Section 125 of the CrPC which is a statutory
provision applicable to women belonging to all faiths
therefore the latter cannot be restricted in its operation to
divorced Muslim women . I find that if Section 125 of the
CrPC is excluded from its application to a divorced Muslim
woman, it would be in violation of Article 15(1) of the
Constitution of India which states that the State shall not
discriminate against any citizen only on the ground of
religion, race, caste, sex, place of birth or any of them.
Further, our interpretation is consistent with the spirit of
Article 15(3) of the Constitution. ”
(emphasis supplied)
22. Furthermore, in the order appended to its judgment in Mohd. Abdul
Samad (supra), the Supreme Court has reiterated the application of
section 125 Cr.P.C. in the following words :
“ c) Insofar as divorced Muslim women are concerned, -
*
ii) If Muslim women are married and divorced
under Muslim law then Section 125 of the CrPC as well as
the provisions of the 1986 Act are applicable. Option lies
with the Muslim divorced women to seek remedy under
either of the two laws or both laws . This is because the 1986
Act is not in derogation of Section 125 of the CrPC but in
addition to the said provision. ”
(emphasis supplied)
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23. Also, it must be noticed that the Legislature has specifically
embedded in section 125 Cr.P.C. itself the grounds which disentitle a
wife to receive maintenance from her husband, namely: unjustified
refusal of the wife to live with the husband; or the wife living in
adultery. To hold that conversion or re-conversion from a particular
religion would disentitle a wife from receiving maintenance under
section 125 Cr.P.C. would do violence to the very intent and purpose
for which the said provision was brought onto the statute book.
24. It is also observed that though in Munavvar-ul-Islam (supra) a
Division Bench of this court considered the views of the learned
authors Charles Hamilton and Neil Braille and their understanding of
the status of a Muslim marriage on apostasy under Muslim law, what
the Division Bench finally ruled is that apostasy by a woman leads to
‘dissolution’ of a Muslim marriage. Nowhere has the Division Bench
held, that as a matter of law, apostasy leads to an ‘annulment’ of
marriage as contra-distinct from its ‘dissolution’. This court is
accordingly inclined to accept the submission made on behalf of the
State, that the ratio of the decision in Munavvar-ul-Islam (supra) is
that apostasy leads to automatic dissolution of marriage but not to
annulment of the marriage (and a decree of declaration that the
marriage stands dissolved may subsequently be obtained from a
court). Clearly therefore, even on apostatizing, in the present case the
respondent would be a ‘divorced-wife’ of the petitioner.
25. To repeat, by apostatizing Islam, the respondent caused the immediate
dissolution of her 11-year marriage with the petitioner; and there is no
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basis to hold that the marriage was rendered ab-initio void or that it
stood annulled.
26. As a sequitur to this, in the opinion of this court, the respondent’s
apostasy of Islam would not disentitle her from receiving maintenance
under section 125 Cr.P.C. so long as she does not re-marry.
27. The next question that must be addressed is whether or not the
amount of maintenance awarded to the respondent-wife and the
petitioner’s son is excessive, as claimed by the petitioner. Since no
notice has been issued on the present petition, this question would
have to be considered based on the record.
28. In this respect, it is noticed that in paras 43 and 44 of the impugned
judgment, the learned Family Court has held as follows :
“ 43. Now in order to decide the quantum of maintenance, the
income of the respondent needs to be assessed. It is the case of
petitioner that respondent is an Architect and was earning more
than Rs.2 lakhs. On the other hand, it is the case of respondent that
he is B.E. (civil) and his service has been terminated on 05.02.2024.
He has placed on record the relieving order which was exhibited as
Ex.RW1/1. The letter Ex.RW1/1 does not bear the stamp of the
company, no witness was examined from the company to prove this
letter. Respondent never proved this document in accordance with
law. Respondent in his cross-examination admitted that his gross
salary was Rs.2 lakh in 2024 and net salary Rs.l,58,000/-. The
relevant portion of the cross-examination is reproduced as under:-
“My gross salary of January 2024 was around Rs.2
lakhs. My net salary was Rs.1,58,000/- ”
“ 44. Respondent has placed on record the statement of
account for the period 01.10.2021 till 05.03.2022 i.e. only for five
months. There is not even a single entry with respect to his salary.
This suggest that the said account is not a salary account.
Respondent never placed on record his salary slip. The Court has
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been kept completely in dark as to whether the deduction arc
compulsory or not. Under Section 109 of the BNSS, 2023 (Section
106 of the Indian Evidence Act 1872), the burden was upon the
respondent to prove his actual income which he has failed to do so.
On record there is an admission of the respondent regarding his
salary/income i.e. net salary to be Rs.1,58,000/- in January 2024.
The present petition was filed in November 2021. In the affidavit of
income, assets and liabilities which was filed in April 2022, he
claimed his salary to be around Rs.1,26,000/-. The salary of the
respondent in November 2021 by no stretch of imagination could
have been less than Rs.1,25,000/-. Hence for the purpose of the
disposal of the present petition, his salary is assessed to be
Rs.1,25,000/-. ”
(emphasis supplied)
29. Evidently therefore, the learned Family Court’s conclusion that the
petitioner’s salary was about Rs.1.25 lacs per month is based on an
admission made by the petitioner himself in the course of his cross-
examination, where he has specifically admitted that gross salary in
January 2024 was around Rs. 2 lacs and that his net salary was Rs.
1.58 lacs. There is also nothing remiss in the observation of the
learned Family Court in the impugned judgment, that if the ‘actual’
income of the petitioner was any different, the petitioner had failed to
discharge the onus on him to prove his actual income in view of
section 106 of the Indian Evidence Act, 1872.
30. In the opinion of this court therefore, there is no basis to hold that the
inference drawn by the learned Family Court in relation to the
petitioner‘s monthly income is erroneous.
31. Accordingly, this court finds nothing remiss in the correctness,
legality or propriety of impugned order dated 03.10.2024 that would
warrant interference by this court in its revisional jurisdiction.
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32. The petition is accordingly dismissed at the stage of issuance of notice
itself.
33. Pending applications, if any, also stand disposed-of.
ANUP JAIRAM BHAMBHANI, J
DECEMBER 12, 2024/ ak/vr
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